Last time we checked in with Ali, our Next Gen solo practitioner, she had decided not to use social media to impeach the former employer of her new client. Her client, Tamara, was five months pregnant when she was unceremoniously fired by her boss, Jamal. Tamara’s co-workers told her that Jamal fired her because she was pregnant. While Jamal claims he has no biases against pregnant women, his private Facebook posts tell a different story. However, Ali reviewed the Rules of Professional Conduct and found that she could not “friend” Jamal to access these posts. More Facebook dilemmas still await her.
Jamal will call a former female employee to testify that Jamal has never said anything negative about pregnant women. However, the former female employee has pictures on her Facebook of her and Jamal on overseas trips in what appear to be romantic destinations. Ali wants to have a third party “friend” the witness in order to retrieve these pictures and challenge the witness for bias. The third party will not lie but will not disclose her association with Ali. May Ali ethically do so?
No, Ali may not. RPC 5.3(b) states: “With respect to a nonlawyer employed or retained by or associated with a lawyer … (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.” Rule 5.3(c) states: “a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.”
In this scenario, Ali is requesting that a third party friend the witness. She therefore, is ordering the conduct involved and is responsible for that third party’s conduct.
RPC 8.4(c) then states: “It is professional misconduct for a lawyer to … engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The third party’s friend request will omit a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because she is intent on obtaining information and sharing it with Ali to use in a lawsuit to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third party was associated with Ali. The third party is violating RPC 8.4(c) and, pursuant to RPC 5.3(b) and (c), so is Ali.
The Philadelphia Bar Association’s Professional Guidance Committee, applying the Pennsylvania Rules of Professional Conduct, also concluded that the inquiring lawyer could not ethically engage in the proposed conduct. The lawyer’s intention to have a third party “friend” the unrepresented witness implicated Rule 8.4(c); Rule 5.3(c)(1); and Rule 4.1. Specifically, the Philadelphia Committee determined that the proposed “friending” by a third party would constitute deception in violation of Rules 8.4 and 4.1, and would constitute a supervisory violation under Rule 5.3 because the third party would omit a material fact (i.e., that the third party would be seeking access to the witness’s social networking pages solely to obtain information for the lawyer to use in the pending lawsuit).
Ali wants to “friend” two high-ranking female employees of Jamal who Kathleen believes are dissatisfied with Jamal and may have made comments to that effect on Facebook. May Ali ethically do so?
No, not if the employees would constitute supervisory or management group employees. RPC 4.2 states: “In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Comment 7 adds: “In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.”
The friend request constitutes a communication about the subject matter of the representation because the motivation for the request seeks information about the subject matter. Therefore Ali cannot contact these high-ranking employees. (See a similar discussion here from the San Diego County Bar Association).
Ali realizes that finding and impeaching witnesses through social media is fraught with more ethical dangers than she realized. But she knows she can win this case without social media. Can she? Find out next time.